VIKAS RATHI versus THE STATE OF U.P. & ANR. on 1 March 2023

1. The Order dated 16.05.2017 passed by the Allahabad HighCourt is under challenge before this Court. By the aforesaid order,Criminal Revision Petition was filed by the respondent No.2 challengingthe order dated 15.03.2017 whereby the application filed under Section319 Cr.P.C. for summoning the present appellant, was dismissed.

2. The High Court, vide impugned order had quashed the Orderdated 15.03.2017 and remanded the matter back to the Trial Court forfresh examination.

3. Learned counsel for the appellant submitted that the appellantestablished his business of manufacture of tools in the year 2003. Acomplaint was filed by respondent no.2 regarding murder of his brotherBachchu Prasad. It was mentioned therein that he used to work in theappellant’s firm. On the basis of the aforesaid complaint, FIR No.480/2013 was registered against unknown persons. Nearly two monthsafter the complaint, wife of the deceased gave a complaint to theSuperintendent of Police, Ghaziabad making false allegations against B

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Athe appellant. The appellant was given notices by the Investigating Officer.Entire information sought was furnished by him. During investigation,the police found an eye witness namely Rajesh Kumar to the allegedmurder whose statement was recorded under Section 164 of the Codeof Criminal Procedure. The aforesaid fact was concealed by thecomplainant while making complaint against the appellant. AfterBcompletion of investigation, the police filed chargesheet against twoaccused persons namely Pannelal @ Panna Lal and Ombeer Singh.The appellant was listed as a prosecution witness. During trial, statementsof various witnesses were recorded. Even the appellant was examinedas PW-6. None of the witnesses stated anything against the appellant.CAfter the statement of the appellant (PW-6) was recorded, thecomplainant filed an application under Section 319 of the Cr.P.C. tosummon the appellant as accused solely on the basis of certain vagueoral allegation by PW-1, PW-2 and PW-3. After hearing arguments, theTrial Court dismissed the aforesaid application vide order dated15.03.2017. It is the aforesaid order, which is under challenge in theDpresent appeal before this Court.

4. The argument raised by learned counsel for the appellant isthat the approach of the High Court in sending matter back for examinationafresh was not right as the material which was available in the form ofstatements of various witnesses could very well be appreciated to findEout as to whether any case was made out against the appellant forsummoning under Section 319 of the Cr.P.C. It is not mere suspicion onthe basis of which an additional accused could be summoned. Only wherestrong and cogent evidence is available against a person from theevidence produced before the Court, which could lead to his conviction, Fthat such a power could be exercised. It could not be exercised in acasual and cavalier manner.

5. In the absence thereof, the impugned order passed by the HighCourt deserves to be set aside and the order passed by the Trial Court,dismissing the application should be upheld. In support of his arguments,Greliance was placed on judgments of this Court in Hardeep Singh andOrs. Vs. State of Punjab & Ors., (2014) 3 SCC 92; Mohd. Shafi vs.Mohd. Rafiq,(2007) 14 SCC 544; Sagar vs. State of U.P. and Anr.,(2022) 6 SCC 389;Kailash vs. State ofRajasthan and Anr.,(2008)14 SCC 51.

6. He further submitted that the stage at which the applicationwas filed by the complainant to summon the appellant as an additionalaccused, the trial was going to conclude as the entire evidence had beenled. Vide judgment of the Trial Court dated 06.10.2017, even the accusedagainst whom the chargesheet was filed, were also acquitted. It was onthe basis of the sketchy evidence produced by the prosecution beforethe trial court that the appellant was sought to be summoned.

7. On the other hand, learned counsel for the State and thecomplainant submitted that a clear case was made out against the appellantfor summoning him as an additional accused. The trial court had failedto exercise the jurisdiction vested in it. No doubt, the High Court couldhave corrected it but the matter was remanded back. The materialalready on record could have been taken into account. Had it been so,the appellant would have also faced trial along with other accused oreven could be tried separately. However, the fact that the accused personsagainst whom the chargesheet was filed were acquitted vide judgmentdated 06.10.2017, has not been disputed.

8. Heard learned counsel appearing for the parties and perusedthe paper book.

9. The principles of law with reference to exercise of jurisdictionunder 319 Cr.P.C. are well settled.

10. The Constitution Bench in Hardeep Singh and Ors.’scase(supra), opined as under:

“105. Power u/s 319 CrPC is a discretionary and anextraordinary power. It is to be exercised sparingly and onlyin those cases where the circumstances of the case so warrant.It is not to be exercised because the magistrate or the sessionsjudge is of the opinion that some other person may also beguilty of committing that offence. Only where strong andcogent evidence occurs against a person from the evidencelaid before the court that such power should be exercisedand not in a casual and cavalier manner.

106. Thus we hold that though only a prima facie caseis to be established from the evidence laid before the court,not necessarily tested on the anvil of cross-examination, itrequires much strong evidence that near probability of his AB

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complicity.The test that has to be applied is one which ismore than prima facie case as exercised at the time of framingof charge, but short of satisfaction to an extent that theevidence, if goes unrebutted, would lead to conviction. In theabsence of such satisfaction, the court should refrain fromexercising power u/S 319 CrPC”.

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(emphasis supplied)

11. In Sagar’s case (supra), it is stated as under:

“9. The Constitution Bench has given a caution thatpower under Section 319 of the Code is a discretionary andCextraordinary power which should be exercised sparingly andonly in those cases where the circumstances of the case sowarrant and the crucial test as notice above has to be appliedis one which is more that prima facie case as exercised at thetime of framing of charge, but short of satisfaction to an extentDthat the evidence, if goes unrebutted, would lead toconviction….”

12. If the evidence already on record produced by the prosecutionis considered on the touchstone of law laid down by the ConstitutionBench of this Court in Hardeep Singh & Ors. case (supra), it does notEgo beyond suspicion. There is no eye-witness to the occurrence. Allwhat has been stated by PW-2 (brother of the deceased) is that thedeceased who was working with the appellant as Manager though claimedto be a partner by the complainant, that there was some dispute regardingmoney between the appellant and the deceased. Rajesh Sharma whosestatement was got recorded by police under Section 164 of the Cr.P.C.Falso retracted therefrom while appearing in court as PW-5. He statedthat it was recorded by the police under threat of involvement in somefalse case. He also did not raise any finger towards the appellant. Ratherhe was the first person to visit the house of the deceased after themurder and informed the appellant to reach there. He was working asGpart time cook with the family of the deceased. Without any materialbrought on record, the widow of the deceased merely stated that she issure that the appellant had committed murder of her husband as therewas no other enemy. One of the brothers of the deceased who appearedas PW-1, who was not present at the spot, did not utter a single wordagainst the appellant.H

13. The aforesaid material was not sufficient if examined in thelight of the law laid down by this Court for summoning of an additionalaccused in exercise of power under Section 319 of the Cr.P.C. to establishcomplicity of the appellant in the crime.

14. After conclusion of the entire evidence and examination ofthe material produced on record even against the charged accused, thetrial court had acquitted them vide judgment dated 15.03.2017. It showsthat material produced on record was not even sufficient for convictionof the accused against whom chargesheet was filed.

15. One of the arguments raised by learned counsel appearing forthe parties was that in the case in hand, the High Court instead ofappreciating the material placed on record by the parties in the form ofevidence to find out as to whether a case was made out for summoningof the appellant as an additional accused, remitted the matter back to thetrial court for consideration afresh. Remand in such a matter will onlyresult in prolonging the litigation. The High Court only recorded thatreasons assigned by the trial court for rejecting the application were notsufficient. To avoid delay, it would have been proper exercise of powerin case the High Court would have considered the material and opine asto whether a case was made out for summoning of additional accused.Whatever reasons have been recorded by the trial court in the order sopassed, may not have been happily worded to the satisfaction of theHigh Court, but that error could have been corrected in exercise ofrevisional power.

16. For the reasons mentioned above, the present appeal is allowed.The impugned order passed by the High Court is set aside and theapplication filed by the complainant for summoning the appellant as anadditional accused is dismissed.

Nidhi Jain

Appeal allowed.

(Assisted by : Mayank Batra and Tamana, LCRAs)

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